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Torres v. State

Supreme Court of Montana

February 5, 2019

FRANCO LEO TORRES, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: January 9, 2019

          APPEAL FROM District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV-2017-655 Honorable Kathy Seeley, Presiding Judge

          For Appellant Franco Leo Torres, Self-Represented, Helena, Montana

          For Appellee Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana

          Mike McGrath Chief Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Franco Leo Torres (Torres) appeals from a March 29, 2018 First Judicial District Court order denying his petition for post-conviction relief. We affirm.

         ¶3 In May 2008, Torres was charged with Partner or Family Member Assault (PFMA) for purposely or knowingly causing bodily injury to his partner, M.R. On May 29, 2008, Torres pleaded guilty pursuant to a plea agreement and received a deferred sentence. Torres did not appeal the judgment.

         ¶4 In 2009, Torres' deferred sentence was revoked and he was sentenced to the Department of Corrections (DOC) for five years, with two years suspended. After serving three years, Torres was released in 2012 to serve the suspended portion of his sentence. In August 2013, Torres was arrested for felony PFMA in Yellowstone County. Torres denied the allegations in the petition and filed a motion to set aside his 2008 PFMA conviction, arguing the pre-2013 PFMA statute was unconstitutional. The District Court denied his motion. Torres' suspended sentence was subsequently revoked and he received a two-year sentence to the DOC, to run concurrently with the sentence imposed by the Yellowstone County District Court for Torres' 2013 PFMA conviction.

         ¶5 In 2017, Torres appealed the denial of his motion to set aside the prior conviction and revocation of his suspended sentence. This Court affirmed the District Court's decision. State v. Torres, 2017 MT 177, 388 Mont. 161, 398 P.3d 279. In August 2017, Torres filed a petition for postconviction relief related to the 2008 conviction. The District Court denied Torres' petition, holding that his claims were time-barred and he waived his right to challenge the PFMA statute when he pleaded guilty in 2008. Torres appeals.

         ¶6 We review a district court's denial of a petition for postconviction relief to determine whether that court's findings are clearly erroneous and whether its conclusions of law are correct. Walker v. State, 2003 MT 134, ¶ 36, 316 Mont. 103, 68 P.3d 872.

         ¶7 A petition for postconviction relief must be filed within one year of the date the conviction becomes final. Section 46-21-102(1), MCA. A conviction becomes final when the time for appeal to this Court expires, which, in this case, was sixty days after the entry of judgment. Section 46-21-102(1)(a), MCA; M. R. App. P. 4(5)(b). Because Torres did not file a direct appeal from the June 10, 2008 judgment, his conviction became final for purposes of § 46-21-102(1)(b), MCA, on August 10, 2008. Accordingly, Torres had one year, until August 10, 2009, to file a petition for postconviction relief. Davis v. State, 2004 MT 112, ¶ 14, 321 Mont. 118, 88 P.3d 1285. Torres did not file his petition for postconviction relief until August 14, 2017-eight years after the expiration of the one-year limitations period.

         ¶8 Torres acknowledges that his claims are time-barred but nonetheless argues that his petition for postconviction relief should be decided on the merits because the District Court "abridged his due process rights" when it used his prior domestic violence convictions in Nevada for stacking purposes to raise his 2008 PFMA conviction to a felony.[1] In an attempt to circumvent the one-year limitations period, Torres argues that newly-discovered evidence establishing his innocence of ...


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